Flexi-job Employment Contract

 

 

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    Background

    The flexi-job employment contract was introduced by the Act of 16 November 2015 on various social provisions.  When this act entered into force (on 1 December 2015), only companies in the horeca sector were allowed to offer flexi-jobs.

    Since 1 January 2018, flexi-job employment contracts have also been permitted in other sectors: certain sectors of commerce, hairdressing/beauty care, and bakeries. Since then, pensioners have also been eligible to work under flexi-job employment contracts.

    Subsequently, the Programme Act of 26 December 2022 extended the scope of flexi-jobs to even more sectors. Since 1 January 2023, the sports, film, entertainment, and healthcare sectors have been allowed to offer flexi-jobs as well.

    Finally, the Programme Act of 29 December 2023 provided for a further extension of the scope of flexi-jobs to additional sectors, which nevertheless may choose not to apply flexi-jobs in whole or in part ("opt-out").  In addition, this act provides that all sectors not included in the scope of application may choose to apply the system in whole or in part ("opt-in"). The federated entities (Communities and Regions) may also request an opt-in for sectors under their competence.

    Flexi-job employment contracts are subject to specific labour law provisions as well as specific social security and tax rules.

    Concept

    A flexi-job contract is a contract under which a worker undertakes to perform additional work for an employer, provided that the worker is already employed by one or more other employers for at least 4/5th of a full-time job. This condition does not apply to flexi-job workers who are retired.

    The flexi-job employment contract is subject to the general rules of labour law, except for certain specific matters for which the Act of 16 November 2015 provides for a derogation. Legislation on well-being at work also applies to flexi-job workers.

    Sectors concerned

    Employers falling under the following joint committees may offer flexi-job employment contracts:

    • the Joint Committee for the food trade industry (No. 119);
    • the Joint Committee for independent retail (No. 201);
    • the Joint Committee for food retail employees (No. 202);
    • the Joint Subcommittee for medium-sized food companies (No. 202.01);
    • the National Joint Committee for sport (No. 223);
    • the Joint Committee for the hotel industry (No. 302);
    • the Joint Subcommittee for the operation of cinemas (No. 303.03);
    • the Joint Committee for the entertainment industry (No. 304);
    • the Joint Committee for large retail companies (No. 311);
    • the Joint Committee for department stores (No. 312);
    • the Joint Committee for hairdressing and beauty care (No. 314);
    • the Joint Committee for healthcare establishments and services (No. 330), or public establishments or services in the public healthcare sector with NACE codes 86101, 86102, 86103, 86104, 86109, 86210, 86901, 86903, 86905, 86906, 86909, 87101, 87109, 87301 and 87302;
    • the Joint Committee for the food industry (No. 118), where the main activity is the retail sale of artisanal chocolate in specialised shops covered by NACE code 47242;
    • the Social and Guarantee Fund for bakeries, cake shops and annexed consumption bars established in the Joint Committee for the food industry (No. 118), sub-sector of industrial bakeries;
    • the Joint Committee for temporary work (No. 322), if the user company falls under one of the above-mentioned joint committees or the above-mentioned social and guarantee fund.

    The Act of 16 November 2015 provides for the possibility of extending the scope of application to the events sector by royal decree once a joint committee specific to that sector has been established.

    Extension from 1 January 2024

    Opt-in or opt-out option

    As of 1 January 2024, the scope of application has been extended to several new sectors.  In these sectors, the social partners may retrospectively decide to no longer allow flexi-jobs in whole or in part (opt-out).

    In all other sectors not covered by the act but falling under the Act of 5 December 1968 on collective labour agreements and joint committees, the social partners may still agree to allow flexi-jobs in whole or in part (opt-in), and may later decide to no longer allow them in whole or in part (opt-out).

    The federated entities may also request an opt-in (or opt-out) for a number of sectors falling under their competence.

    Authorisations (opt-ins) or exclusions (opt-outs) are introduced by royal decree, issued annually and entering into force on 1 January of the following year (a transitional measure provides that, in 2024, authorisations may be granted on a quarterly rather than on an annual basis).

    General exclusions

    In all sectors, the following functions are excluded from the scope of application:

    • artistic, artistic-technical and artistic-support functions that include activities covered by the Act of 16 December 2022 establishing the Arts Labour Commission and improving social protection for workers in the arts;
    • functions that include tasks falling under the material scope of the coordinated Act of 10 May 2015 on the practice of healthcare professions.

    Current information

    The extension of the scope of application as of 1 January 2024 means that the sectors in which employers may offer flexi-jobs are no longer legally fixed and may, in principle, change each year.

    For up-to-date information on the scope of flexi-jobs, please read the administrative instructions of the National Social Security Office (NSSO) (more info in Dutch and in French). Further information may be obtained from the Federal Public Service Social Security or the NSSO (more info in Dutch and in French).


    Who can work a flexi-job?  

    Both workers and pensioners may enter into flexi-job employment contracts under certain conditions.

    Conditions applicable to workers

    • be employed for at least 4/5th of a full-time job with one or more other employers during the reference quarter

    To be eligible for a flexi-job, the worker must be employed for at least 4/5th of a full-time job with one or more other employers during the third quarter preceding the start of the flexi-job (reference quarter: Q-3).

    For example, if a worker wishes to start a flexi-job in July 2023 (Q3 2023) with an employer falling under one of the authorised sectors, they must have worked at least 4/5th of a full-time job with another employer during Q4 2022 (October, November, December 2022).

    To determine whether the 4/5th employment requirement was met during the reference quarter Q-3, all periods paid by the employer are taken into account, along with a limited number of unpaid periods during which the employment contract was suspended.  In addition, a number of exclusions are explicitly provided for.

    • not be subject to a prohibition on cumulation at the time of performing the flexi-job

    More specifically, the following prohibitions apply:

    • The worker may not perform a flexi-job for an employer with whom they are already employed under an employment contract or in a statutory position during the quarter in question.

    Example: a worker who already holds a job in a hairdressing salon may not take up a flexi-job in the same salon. However, a worker who only has a flexi-job in a hairdressing salon may switch to a regular job in that same salon.

    • The worker may not start a flexi-job with their employer if they are in their notice period during the quarter in which they intend to take up the flexi-job (quarter Q).

    Example: a worker in a two-week notice period may not take up a flexi-job with their employer during that two-week period.

    • The worker may not be in a period covered by a severance payment or dismissal compensation paid by the employer for whom they are performing the flexi-job.

    Example: a worker receiving dismissal compensation covering a two-week period from the employer with whom they intend to perform a flexi-job may not start the flexi-job until that two-week period has ended.

    • The worker may not be employed as a flexi-job worker through a temporary work agency by a user with whom they are already employed under a regular employment contract.   

    Example: a worker may not be employed in a hairdressing salon under a regular employment contract and also work there as a temporary worker performing a flexi-job.

    • The worker may not take up a flexi-job in a company that is related — as defined in Article 1.20 of the Companies and Associations Code (more info in Dutch and in French)–  to the company with which they have an employment contract for at least 4/5th of a full-time job.

    Example: a worker employed in a hairdressing salon may not take up a flexi-job in another company related to that salon within the meaning of Article 1.20 of the Companies and Associations Code.

    • not have switched from a full-time job to 4/5th of a full-time job during the previous reference period

    Workers who switch from a full-time job to 4/5th of a full-time job will now be subject to a waiting period. They will not be allowed to take up a flexi-job for two quarters starting from the third quarter following the switch. Example: a worker who reduces their working hours from full-time in quarter Q–4 to 4/5th in quarter Q–3 is not allowed to take up a flexi-job in quarters Q and Q+1.

    For detailed information on the conditions for working a flexi-job, please refer to the administrative instructions of the NSSO (more info in Dutch and in French). Further information can be obtained from the FPS Social Security or the NSSO (more info in Dutch and in French) .

    Conditions applicable to pensioners

    Under certain conditions, pensioners may also conclude a flexi-job employment contract.  More information can be obtained from the FPS Social Security (more info in Dutch and in French)or the NSSO (more info in Dutch and in French).

    Specific employment contract

    In the context of a flexi-job, two contracts must be concluded: a framework contract and a flexi-job contract. The employer must conclude a flexi-job employment contract each time they wish to employ the worker. If the legal provisions relating to flexi-jobs (outlined below) are not respected, the agreement will not be considered a valid flexi-job employment contract.

    Framework contract

    A framework contract must be concluded in writing between the employer and the worker prior to the start of the first assignment.

    This contract must include the following information:

    • the identity of the parties;
    • the method and time period within which the employer must offer a flexi-job contract to the worker;
    • a brief description of the job(s) to be performed;
    • the flexi-wage;
    • the text of Article 4, §1 of the aforementioned Act of 16 November 2015, i.e. the article concerning the 4/5th requirement during the reference quarter, unless the flexi-job worker is a pensioner.

    If the worker is a temporary worker, no framework contract is required. The information listed above must be included in the temporary employment contract.

    Flexi-job employment contract

    A flexi-job employment contract is concluded between the employer and the flexi-job worker either for a fixed term or for clearly defined work.

    The flexi-job employment contract is subject to the general rules of labour law, except for some specific matters for which the Act of 16 November 2015 lays down a special provision.

    A flexi-job employment contract may be concluded not only in writing but also orally, by way of derogation from Article 9, paragraph 1, of the Act of 3 July 1978 on employment contracts (more info in Dutch and in French).

    Furthermore, certain exceptions apply when working flexible hours (more info in Dutch and in French). In such a case:

    • the monitoring of derogations from the normal working hours of part-time workers does not apply (Articles 160 to 169 of the Programme Act of 22 December 1989);
    • the prohibition on working or allowing work to be carried out outside working hours as set out in Article 38bis of the Labour Act of 16 March 1971 does not apply.

    The framework contract and the flexi-job employment contract must be kept by the employer at the place where the flexi-job is performed.   

    Remuneration

    The worker is entitled to a flexi-wage and flexi-holiday pay.

    Minimum wage

    The flexi-wage consists, first, of the basic wage to which the worker is entitled. This basic wage must be at least equal to the hourly wage set according to the pay scale (more info in Dutch and in French) applicable to the job performed by the flexi-job worker, as determined by a collective labour agreement (more info in Dutch and in French) or by applicable legislation or, in the absence of such a pay scale, to the hourly wage determined on the basis of the guaranteed average monthly minimum income (more info in Dutch and in French).  

    By way of derogation, in the horeca sector (Joint Committee 302), the basic wage is at least €10.97 per hour (rate as at 1 December 2022).

    In addition to the basic wage, the flexi-wage includes any allowances, bonuses and benefits paid by the employer as remuneration.

    Maximum wage

    The flexi-wage may not exceed 150% of the above-mentioned minimum basic wage, unless a different ceiling is established by a collective labour agreement made compulsory by the King.

    Flexi-holiday pay

    Flexi-holiday pay amounts to 7.67% of the flexi-wage.

    Tax and social security aspects

    A flexi-job employment contract allows additional work to be performed under favourable tax and social security conditions.

    More information on social security benefits can be obtained from the FPS Social Security (more info in Dutch and in French).

    More information on the tax exemption applicable to flexi-wages can be obtained from the FPS Finance or via their website (more info in Dutch and in French).

    Social dialogue

    Each calendar year in which flexi-job workers are employed, a consultation on the application of flexi-jobs must be held between the employer and the workers’ representatives.

    This consultation takes place within the works council or, for employers not subject to the Act of 5 December 1968 on collective labour agreements, within the competent consultation body.